Polites v Commonwealth Kandiliotes v Commonwealth
70 CLR 60(Judgment by: Starke J)
Polites
v Commonwealth Kandiliotes v Commonwealth
Judges:
Latham CJ
Rich J
Starke JDixon J
McTiernan J
Williams J
Subject References:
Constitutional law
Construction of statutes to prevent conflict with rules of international law
Act authorising conscription of persons for defence purposes
Legislative References:
National Security Act 1939 No 15 - ss 5, 13A
National Security (Aliens Service) Regulations 1942 SR No 39 - r 7
Judgment date: 10 April 1945
Melbourne
Judgment by:
Starke J
The plaintiffs in these actions, resident, according to the respective writs of summons, in Australia, are nationals of the Kingdom of Greece who have been called upon to enlist and serve in the military forces of the Commonwealth. Polites was called to enlist and serve under the provisions of the National Security (Aliens Service) Regulations 1942 No. 39 and Kandiliotes under the provisions of Part II. of the National Security (Aliens Service) Regulations inserted by Statutory Rules 1943 No. 108. Each plaintiff, by his statement of claim, seeks a declaration that the regulation under which he was called to enlist and serve in the military forces of the Commonwealth is unauthorized by the National Security Act 1939-1943 or any other Act of the Parliament and also a declaration that he is not a member of, nor liable to serve in, the military forces of the Commonwealth.
The Commonwealth has demurred to each statement of claim.
The National Security Act 1939-1943 empowers the Governor-General to make regulations for securing the public safety and the defence of the Commonwealth and in particular for requiring or authorizing any action to be taken by or with respect to aliens, and for prohibiting aliens from doing any act or thing. The challenged regulations purport to have been made under this power.
The validity of this Act has been sustained in this Court on many occasions, and need not be further discussed. And it was properly conceded in argument that the plaintiffs fall within the terms of the relevant regulations if they are valid. It is not explicitly alleged what services the plaintiffs have been called upon to perform, but it is said truly enough that the call is wide enough to cover performance of military functions, perhaps in line of battle. And it is contended that the regulations are invalid because they authorize allied nationals, that is, nationals of any country allied or associated with His Majesty the King in any war in which His Majesty is or may be engaged (subject to some exceptions immaterial for the purpose of this case), who have attained the age of 18 years but have not attained the age of 60 years to be called for service in the military forces of the Commonwealth contrary to the principles or rules of international law.
International law or the law of nations is a law for the intercourse of States with one another and not a law for individuals: See Oppenheim, International Law, 4th ed. (1928), vol. 1, Peace, s. 1, p. 5. The law of nations, as I understand it, concedes that all persons or things within the territory of a State fall under its territorial supremacy and are subject to its jurisdiction, legislative, administrative and judicial: See Oppenheim, 4th ed. (1928), vol. 1, Peace, s. 144, p. 280. And the Commonwealth is in much the same position as a sovereign State in relation to the powers conferred upon it by the Constitution. Its authority is as plenary and as ample within the limits prescribed by the Constitution as the Imperial Parliament in the plenitude of its power possessed or could bestow (Hodge v The Queen [F9] , at p. 132). No doubt sovereign States have, and have often exercised, the right of protecting their nationals abroad against oppression, discrimination and so forth. But that is a very different proposition to that advanced in the present case, namely, that the legislative power of the Commonwealth is subject to and that all its legislation, whether by the Parliament itself or by any subordinate authority, is limited by or must be construed so as not to contravene the rules of the law of nations. So to limit the constitutional power of sovereign States or their subordinate authorities denies the supremacy of those States within their own territory, which is contrary to the principles of the law of nations itself. And to refuse to give words in legislation their grammatical and ordinary signification because of some practice or rule of the law of nations is contrary, as I think, to settled principles of construction. Cases of ambiguity I leave on one side, for there is no ambiguity in the meaning of the present regulations.
It is desirable, however, to consider the law, practice or rule of nations upon which reliance is placed. Hall, Treatise on International Law, 7th ed. (1917), s. 61, p. 219, states that it is in accordance with general principle to say, as is in effect said by M. Bluntschli, that:
"1. It is not permissible to enrol aliens, except with their own consent, in a force to be used for ordinary national or political objects.
2. Aliens may be compelled to help to maintain social order, provided that the action required of them does not overstep the limits of police, as distinguished from political action.
3. They may be compelled to defend the country against an external enemy when the existence of social order or of the population itself is threatened, when, in other words, a state or part of it is threatened by an invasion of savages or uncivilized nations."
During the Civil War in America, the British Government, however, instructed its ambassador that there was no rule or principle of international law which prohibits the government of any country from requiring aliens resident within its territories to serve in the militia or police of the country or to contribute to the support of such establishments (Hall, Treatise on International Law, 7th ed. (1917), at p. 218). The practice or rule of civilized nations is thus rather vague and undefined. And to limit constitutional powers by the rule suggested would be subversive of the sovereignty of the State itself. And to construe the legislation of sovereign States or their subordinate legislative authorities by reference to such a rule would often be in direct contradiction of the legislation itself and in any case beyond the ordinary functions of courts of law. The truth is that the so-called law is a practice or rule which every State enjoys as of right for the protection of its subjects abroad (See Oppenheim, International Law, 4th ed. (1928), vol. 1, Peace. s. 320, p. 558) and it is a right which is exercised through diplomatic action. To treat the rule as a restriction upon the legislative capacity of sovereign States or as an overriding principle governing the construction of legislative acts ignores the fundamental principle of government that a State is sovereign within its territory and it is moreover, so vague and indefinite that courts of law would find it difficult, if not impossible, of application. But this is not to say that the plaintiffs have no remedy: they may represent their cases to the Commonwealth, which would not, I should think, send them into the battle line, or in case of need apply for protection through the representatives of their national government.
The demurrer should be allowed in each case.